Land and Environment Court New South Wales Medium Neutral Citation: Bathurst Regional Council v Taylor [2012] NSWLEC 226 Hearing dates: 25 September 2012 Decision date: 04 October 2012 Jurisdiction: Class 1 Before: Lloyd AJ Decision: No 10052 of 2012 1. The appeal is allowed. 2. The judgment and orders of the commissioner made on 25 May 2012 are set aside. 3. The question of costs is reserved. 4. The exhibit may be returned. No 10053 of 2012 1. The appeal is allowed. 2. The judgment and orders of the commissioner made on 25 May 2012 are set aside. 3. The question of costs is reserved. Catchwords: APPEAL - s 56A of the Land and Environment Court Act 1979 - question of law - development application - construction of clause in planning instrument - whether commissioner failed to take into account the policy in clause - whether in imposing development consent conditions which engaged clause commissioner was required but failed to apply clause - no power to grant development consent Legislation Cited: Bathurst Regional (Interim) Local Environmental Plan 2005 cl 27, cl 28 Environmental Planning and Assessment Act 1979 s 4 Land and Environment Court Act 1979 s 56A State Environmental Planning Policy (Rural Lands) 2008 Cases Cited: Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 Dach v Kiama Council [2007] NSWLEC 316 Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122 Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 Ireland v Cessnock City Council [1999] NSWLEC 250; (1995) 110 LGERA 311 Jonah Pty Ltd v Pittwater Council [2008] NSWLEC 99; (2008) 144 LGERA 408 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Taylor v Bathurst Regional Council [2012] NSWLEC 1140 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Category: Principal judgment Parties: Bathurst Regional Council (appellant) James Patrick Taylor (respondent) Representation: Mr P R Clay SC (appellant) Submitting appearance (respondent) Crennan Legal (appellant) McPhee Kelshaw (respondent) File Number(s): 10575 of 2012 Decision under appeal Citation: Taylor v Bathurst Regional Council [2012] NSWLEC 1140 Date of Decision: 2012-05-25 00:00:00 Before: Fakes C File Number(s): 10052 - 3 of 2012 Judgment 1In 1991 the former Evans Shire Council granted development consent for the erection of a building at 2 Robertson Place, Rockley, for "furniture manufacturing". The building included an annex comprising a staff lounge, toilets, office and a drawing office. 2The furniture manufacturing business subsequently went into liquidation and in 2004 Mr J P Taylor purchased the premises. The former owner had used part of the building - apparently the annex - as a dwelling. Mr Taylor then carried out some alterations to the former factory building for its use as a dwelling, creating additional rooms within the building and the installation of additional windows and doors. No consent had been granted for the use of any part of the building as a dwelling or for the works, and Mr Taylor was unaware of the need to obtain the Council's consent for the use or works. 3Having decided to sell the building, Mr Taylor was advised that he needed a building certificate for the work he had done. When he applied to Bathurst Regional Council (the successor to the former Evans Shire Council) for a building certificate he was told that there was no development consent for the use of the building as a dwelling. He then lodged a development application to use the building as a dwelling. 4Mr Taylor's appeals against the Council's refusal of his applications for a building certificate and for development consent were upheld by Commissioner Fakes: Taylor v Bathurst Regional Council [2012] NSWLEC 1140. The Council now appeals against the commissioner's determination, being an appeal limited to a question of law: s 56A, Land and Environment Court Act 1979. Grounds of Appeal 5The Council raises three grounds of appeal: (a)The commissioner erred in her construction of cl 28 of the Bathurst Regional (Interim) Local Environmental Plan 2005 ("the LEP") in holding that it did not apply to the subject development. (b)Alternatively, the commissioner failed to take into account the policy inherent in cl 28 in considering the development application. (c)By imposing conditions on the approval of the development application which relate to the carrying out of building work, the commissioner was required to, but failed, to apply cl 28, which necessarily compels refusal of the development application. 6These grounds do not directly challenge the commissioner's decision to uphold the appeal against the Council's refusal of the building certificate. The Council nevertheless submits that a consequence of the absence of any development consent means that the decision to approve the building certificate must also be set aside. The Relevant Planning Controls 7The land in question is in a rural area about 500m from the zoned boundary of the village of Rockley. The land is zoned 1(e) Outer Rural Zone under the LEP. The key provision raised in the present appeal is cl 28(1): 28 Dwelling-houses - rural zones (1)The consent authority must not consent to the erection of a dwelling-house within one of the zones identified in the Table to this subclause unless the lot on which the dwelling-house is proposed to be erected: (a) has an area not less than the minimum area set by the Table for a lot in that zone, and is vacant, or (b) comprises the whole of an existing holding, the area of which is less than the minimum area set by the Table for a lot in that zone, and is vacant, or (c) comprises a lot created pursuant to cl 27(4) and is used for intensive agriculture and is vacant, or (d) comprises a lot that was created in accordance with a consent granted before the appointed day, being a lot on which a dwelling-house could have been lawfully erected immediately before the appointed day, and is vacant. ... vacant means devoid of a dwelling-house. 8The table to cl 28 specifies the minimum area for the erection of a dwelling-house in Zone 1(e) as 100ha. The subject land has an area of 1.614ha, and also does not come within either of par (b) to (d) of cl 28(1). 9The reference in cl 28(1) to "the erection of a dwelling-house" requires recourse to s 4(2)(b)(i) of the Environmental Planning and Assessment Act 1979: 4 Definitions ... (2) A reference in this Act to: ... (b) the erection of a building includes a reference to: (i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building The Commissioner's Determination 10The commissioner first dealt with the appeal against the Council's refusal of the application for a building certificate. The commissioner noted that the power to issue a building certificate does not depend upon whether the work had been legally or illegally constructed, citing the judgments of Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 and Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311, and the judgment of Moore C in Dach v Kiama Council [2007] NSWLEC 316. After considering the expert evidence, which identified the need for some rectification works, the commissioner found that there appeared to be no technical reason why the Council should not issue a building certificate. The commissioner then went on to say: However, it is likely that a number of conditions will have to be imposed to ensure that all work is compliant with the BCA and any other relevant standards. 11The formal orders upholding the appeal in relation to the building certificate are as follows: (1) The appeal is upheld. (2) The applicant is to obtain, and Bathurst Regional Council is to grant, a Building Certificate pursuant to Section 149A of the Environmental Planning and Assessment Act 1979. The Building Certificate will only be issued upon the satisfactory completion of works required by conditions 1 and 2 as noted in the consent conditions in Annexure A. 12In relation to the appeal against the Council's refusal of Mr Taylor's development application to use the building as a dwelling, the commissioner held that cl 28 did not apply since this was not an application for the erection of a dwelling on the land. The commissioner again relied upon the two judgments of Bignold J in Ireland and the judgment of Moore C in Dach, as well as the judgment of Preston J in Jonah Pty Ltd v Pittwater Council [2008] NSWLEC 99; (2008) 144 LGERA 408, that past unlawful use is not a relevant factor. 13The commissioner next considered whether the development was contrary to the objectives of the Act, the relevant zone, and rural planning principles under State Environmental Planning Policy (Rural Lands) 2008. At [68] the commissioner stated: I accept the intent of the zone objectives is to maintain and support the viability of agricultural development. I also accept that cl 27 - subdivision of land and cl 28 - dwelling houses on rural lands have been formulated to maintain those objectives and to limit the proliferation of dwellings that may interfere with achieving those objectives. Similarly, while I accept that SEPP RL also aims to maintain the principal use of land, I consider it does not apply to the appeal before the Court. 14The commissioner again noted at [69] that this was not an appeal against the refusal of a new dwelling or structure on that land; that little weight could therefore be given to the objectives of the zone or any significant contravention of the objects of the Act; even if the building were to be demolished, the lot size was likely to be too small for any viable broad acre agricultural use; that an empty building contributes little to the economy; that the Council did not raise any particular aspects of the scenic environment that require protection or conservation; and that the application could thus be approved on the merits. The formal orders included, however, a number of conditions relating to additional work to be carried out. 15Finally, the commissioner went on to deal with other matters not relevant in this appeal. 16I now turn to the Council's grounds of appeal. Ground 1: error in construing cl 28 17Mr P R Clay SC, appearing for the Council, submits that the proper construction of cl 28 when read in its context and purpose is that the notion of "the erection of a dwelling-house" includes a change of use of a building to a dwelling-house; such a construction is to be preferred because it is reasonably open and more closely conforms to the legislative intent of the provisions; the definition in s 4(2) of the Act is non-exhaustive; cl 27 of the LEP (which sets the minimum area of lots in rural zones) and cl 28 are evidence of the policy that a dwelling-house should only be on lots of not less than 100ha; and in such circumstances an alternative construction to the literal meaning is permissible (citing Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ, and Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7] - [8] per Jagot J). 18Mr Clay further submits that unless the broader meaning of cl 28 is adopted so as to include the use - that is the coming into existence - of a dwelling-house, it would lead to an absurd outcome by which a dwelling-house which had been brought into existence unlawfully can be approved on land having an area of less than 100ha, simply by making a post-construction development application for its use. 19I am unable to accept these submissions. Although legislation is construed to give effect to its purpose so far as its language permits, there is a limit. A court can only construe legislation, not rewrite it, in the light of its purposes: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235, per Dawson J. In Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 113 McHugh J said: If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words in a tortured or unrealistic manner to cover another set of circumstances. 20In Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122, Campbell J warned at [36] that any anomaly arising from a possible construction of a provision must be a very serious one before a court is justified in using that anomaly for rejecting a particular construction. His Honour continued: "Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature." In the present case the language of cl 28 of the LEP is clear and unambiguous. It refers only to "the erection of a dwelling-house" That was the policy choice of the draftsman. It would have been a simple matter for the draftsman to include the additional word "use" if that were the intention. 21Neither do I accept the construction that limiting the operation of cl 28 to "the erection of a dwelling-house" necessarily leads to an absurd outcome. Any development application to use an existing building for the purpose of a dwelling-house must still overcome the hurdle of the "merit" tests. 22The commissioner was correct in finding that cl 28 of the LEP did not apply to the development application as submitted. Ground 2: failure to take into account the policy inherent in cl 28 23Mr Clay submits that the commissioner was obliged to take into account the policy inherent in cl 28 when considering the development application; the policy is plain - dwelling-houses should only exist on lots having an area of not less than 100ha; it was mandatory to take into account a policy which is at the heart of the assessment process; as well as an element of the public interest, the policy is a circumstance of the case; and the commissioner failed to include consideration of cl 28 and failed to give it any weight at all. 24Mr Clay's reliance upon the public interest and a circumstance of the case is a reference to the judgment of Mason P (Spigelman CJ and Ipp JA concurring) in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [81], in which his Honour held that a consent authority may range widely in the search for material as to the public interest. 25Clause 28 clearly demonstrates the policy identified by Mr Clay, which is both an element of the public interest and a circumstance of the case. Accepting, without deciding, that it was a mandatory consideration, I find that the commissioner did in fact have regard to it in her merit assessment of the application as noted at [13] above. 26The commissioner then went on to balance these policy objectives with the other circumstances of the case, stating at [69] - [70]: I in the circumstances of this proposal, the building and ancillary roads and landscaping were approved and constructed and therefore the potential of Lot 238 for broad acre agricultural purposes is effectively extinguished. Similarly, there will be no change to the scenic environment. Again, this is not an appeal against the refusal of a new dwelling or structure on the land. Therefore I can give very little weight to the council's arguments regarding the objectives or the zone or any significant contravention of the objects of the Act. Even if the building were to be demolished, the lot size is likely to be too small for any viable broad acre agricultural use. Likewise, an empty building contributes little to the local economy. Similarly, council did not raise any particular aspects of the scenic environment of the site that require protection or conservation. Therefore I find on a merit assessment that the proposal is not contrary to the zone objectives, the rural planning principles in SEPP RL, or to the objects of the Act and therefore should not be refused on this basis. 27At [81] the commissioner noted Mr Taylor's submission that the situation is unique and that the use of the building will have no impacts on the amenity of the adjoining land and no lessening of the existing agricultural potential of the land. At [83] the commissioner notes her concurrence with Mr Taylor's submission and finds the proposal unobjectionable in its own right, ultimately finding, at [84]; While I accept council has difficulty with this proposal, I find on balance that in the particular circumstances of this case, and in accordance with the matters to be considered under s 79 of the Act, approval can be given for the use of part of the site as a dwelling and that a Building Certificate can be issued. However, as flagged during the judgment, there are a number of conditions that will need to be imposed to satisfy council that the building complies with the BCA and all relevant standards. 28The weight to be given to any particular consideration is a matter which is entirely within the discretion of the decision-maker and any misattribution of weight does not amount to an error of law. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J; Terrace Tower Holdings v Sutherland Shire Council at [51]. The commissioner clearly considered the policy inherent in cl 28 and gave it little weight having regard to the other circumstances of the case. I find, therefore, that this ground of appeal is not established. Ground 3: cl 28 necessarily applies as a consequence of the conditions of consent relating to the carrying out of work within the meaning of the erection of a building 29The commissioner noted, at [45] and [56], that the definition of erection of a building includes alterations and modifications: s 4(2)(b) of the Act. The commissioner then focussed on the work done in the past by Mr Taylor in holding that the clause did not apply. Mr Clay submits, however, that the conditions imposed on the development consent by the commissioner relating to the requirement to carry out work to the fabric of the building necessarily engaged cl 28, which thus became a mandatory requirement. 30I agree. The commissioner noted at [24], [26] and [40] the expert evidence that rectification of some components of the structure was required and that, subject to completion of rectification works the building would then be structurally adequate for occupation as a residence. As noted at [14] and [27] above, the commissioner imposed a number of conditions relating to structural work. This meant that cl 28 was necessarily invoked and it became a mandatory requirement. That is, rather than being merely a matter which was to be taken into consideration as a circumstance of the case, indicating a policy and an element of public interest, the mandatory terms of the clause meant that there was no power to consent to the development application since the land in question is less than 100ha in area. 31This question was not raised before the commissioner, and it is now raised for the first time in this appeal. Since the question goes to the jurisdiction of the court to grant consent and does not involve the calling of more evidence, there is no bar to it being raised now. The commissioner, however, correctly dealt with the issues that were raised before her. Conclusion 32It follows that the third ground of appeal must be upheld and the commissioner's consent to the development application for the use of the building as a dwelling must be set aside. 33The commissioner's decision to uphold the appeal in relation to the building certificate must also be set aside, since it appears that the decision to uphold that appeal was dependent upon the decision to consent to the use of the premises as a dwelling. This appears from [84] of the commissioner's decision where the commissioner said: ... and in accordance with the matters to be considered under s 79 of the Act, approval can be given for the use of part of the site as a dwelling and that a Building Certificate can be issued. 34Mr Clay concedes that where an appeal succeeds on a ground not raised at first instance, the successful appellant is ordinarily not entitled to the costs of the appeal. He accepts that Mr Taylor should, however, have an opportunity to seek a special order for costs if so advised. Accordingly the question of costs is reserved. Orders 35No 10052 of 2012 (1)The appeal is allowed. (2)The judgment and orders of the commissioner made on 25 May 2012 are set aside. (3)The question of costs is reserved. (4)The exhibit may be returned. 36No 10053 of 2012 (1)The appeal is allowed. (2)The judgment and orders of the commissioner made on 25 May 2012 are set aside. (3)The question of costs is reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2012